TITLE IX

The law is that schools have an obligation to treat their students fairly - men and women, boys and girls.” - National Women’s Law Center

Title IX Chronology 

 1966 - DGWS created the Commission on Intercollegiate Athletics for Women (CIAW) to move them further along the path in sponsoring national championships for girls/women

 1967 - “In 1967 women’s sports was a small-time venture, hardly noticed by anyone but the participants. Doing things differently from the men was practical and seemed natural.” - Festle

 Late 60’s - social movements ~ aim at eliminating legal barriers to equality

 

Bernice Sandler’s Story

 Executive Order 11246 (Johnson) applicable to federal contractors

 WEAL

 

Chronology (continued)

 Early 70’s - physical educators began to assume positions as leaders in the quest to define and achieve equality in athletics. (still reluctant to be very politically active)

 1970 - Congress gets in on the act

 Edith Green (D-OR.) sought protection against discrimination based on sex in programs that receive Federal funds by proposing legislation that would mirror the protection that had already been secured in relation to race, color, and national origin in Title VI of the Civil Rights Act of 1964)

 When the House held hearings on her proposed bill, many women testified about various types of discrimination in several settings (athletics was mentioned)

 

 

Chronology (continued)

 NCAA and AIAW continue to “debate” governance and opportunities issues - summed up by roundtable discussions at NCAA’s 1972 Convention

 June 23, 1972 - Title IX of the Omnibus Education Act of 1972 became public law!

 Although regulations and interpretations had yet to surface

 January 1973 - Athletes and teachers at two Florida colleges file lawsuit a/g AIAW’s ban on scholarships (14th A. - equal protection argument)

Chronology (continued)

 1974 - A.D.’s get first glance at HEW’s regulations

 after declaring athletics was within the law’s scope, regulations went on to insist that women receive equality in areas of scheduling, facilities, travel, etc

 reaction: (sportswriters far worse than A.D./Coach)

 “I’m all for women’s athletics, but if we had to split our budget, it would bankrupt us.” - Bear Bryant (UA)

 “While I support philosophically the principle of equality, as a practical matter it just won’t work This department wholly endorses a comprehensive women’s athletic program but that does not include athletic scholarships or equal sharing of revenue” - Jim Kehoe (U of Maryland)

Chronology (continued)

 Mid 70’s - physical educators had almost abandoned their earlier philosophy of silent acceptance (perhaps realizing the Federal legislative and judicial branches were becoming more and more friendly to claims involving individual rights and civil liberties) and had adopted a more politically active and progressive agenda

 May 27, 1975 - President Ford signed authorization for the final Title IX regulation (HEW published on June 4, 1975)

 July 21, 1975 - Fed reg.s enacted in re: athletics (H.S. and colleges given three years to comply / elem - one year)

 

Chronology (continued)

 1976 - First legal challenge brought by NCAA (application to athletics) / legislative action to amend also takes place 

 defeated

 1979 - OCR / HEW issued official “Policy Interpretation” for Title IX compliance in intercollegiate athletics

 1984 - Grove City v. Bell (athletics excluded / meaning of “program”) 

 NCAA v. Smith, 1999 (is Title IX applicable to NCAA?)

 1988 - Civil Rights Restoration Act passed (reverses Grove City - “institutional coverage”)

Chronology (continued)

 1990 - OCR develops Title IX investigator’s manual

 Procedure of investigation

 1992 - Franklin v. Gwinnett County Public Schs

 monetary damages made available

What areas of athletics is Title IX concerned with?

 As established by 1979 “Policy Interpretation” (Investigators Manual helps OCR officials ask the right questions in regard to:)

 accommodation of interests and abilities

 scholarship opportunities 

 other programs areas

 1) equipment and supplies

 2) scheduling of games and practice time

 3) travel and per diem allowances

 4) tutoring

 5) coaching

 6) locker rooms, practice, and competitive facilities 

 7) medical and training facilities and services

 8) housing and dining facilities and services

 9) publicity

 10) support services; and

 11) recruitment of students

 

Review of 3-prong Title IX compliance test

 1) provide participation opportunities proportionate to undergraduate enrollment, 

 Participants = those athletes who a) are receiving the institutionally sponsored support normally provided to athletes competing at the institution involved (e.g. coaching, equipment, medical/training services, on a regular basis during a sports season) b) are participating in organized practice sessions and other team meetings c) are listed on the eligibility or squad lists d) b/c of injury cannot meet a,b, or c but continue to receive financial aid (based on athletic ability) 

 This means walk-ons, those participating on teams which have to raise some of their own funds, athletes that practice but that do not compete

 

 

2) show a continuing practice of expanding opportunities for the underrepresented sex, or

 Is there a plan in place? 

 Is that plan being effectively communicated to students? 

 Is the plan responsive to the developing interests and abilities of upcoming players?

 Cutting programs for the over-represented sex does not establish a history of expanding opportunities for the underrepresented sex 

3) show that interests & abilities of underrepresented sex are being fully & effectively met

 OCR will consider whether there is 

 A) unmet interest in a particular sport

 B) sufficient ability to sustain a team in that sport

 C) a reasonable expectation of competition for the team

 Factors OCR considers interest indicators:

 -requests by students that a particular sport be added

 -requests that an existing club sport be elevated in status

 -participation in intramural sports

 -interviews w/students

v - results of questionnaires 

 i.e. Univ of New Mexico and others

Other considerations…

 Breadth of Title IX’s reach – rec programs (p.564)

 Other statutes, legal concepts ensuring gender equity 

 14th Amendment – Equal Protection

 Title VII

 Opportunities to participate free from harassment

 Title IX

 Title VII

 

 

 

 

Conceptually Flawed

 1) hidden factors that may create a false perception of law female interest

 2) lack of female interest b/c of past discrimination

 3) assessment of female interest relative to male interest

 4) inappropriate target populations

 5) women’s tendency to underrate own ability

1) hidden factors among participation numbers that may create a false perception of law female interest

 School/intramural athletics menu (female interest may lie in sports others than those offered)

 # of male athletes in football 

 squad sizes

2) lack of female interest b/c of discrimination

 Measuring interest at the high school and intercollegiate levels (and other levels) at this point is stab in the dark - without having opportunities on all levels for some serious period of time, measuring true or potential interest is difficult.

3) Relative Interest

 Accommodate female interest relative to men’s 

 i.e. accommodate 25% of men interested and 25% of women interested 

 125/500 men and 50/200 women would be okay

 Problems?

 Remedial nature of Title IX - this type of argument where interest of females is offered as a reason for providing fewer opportunities to them is the very thing Title IX was enacted to prevent (compare Craig v. Boren - even though there are statistics….)

 OCR Policy Int. criteria for determination of interest

 

 

 

4) Inappropriate Target Populations

 Should interest survey only target “existing student body”? 

 Why?

 Perhaps appropriate for meeting first prong of test (proportionality), but not third

 Why Not?

 Most athletes aren’t walk-ons / not recruited from student body

 Who should interest surveys target? 

 High School students from states typically targeted for recruiting

 problems? 

5) Women Underrate Their Ability

 “Women tend to attribute success to external factors such as luck rather than to internal factors like skill or preparation.”

 Also tend to underrate abilities in activities that are considered “non-traditional” for females (like sport).

 

 Thus “asking women to rate their own ability to participate in sport at the intercollegiate level may result in data that does not accurately reflect their true abilities.”

 How does the NCAA survey address this potential problem?

Construction Concerns

 Length of survey

 issue(s):

 Limited menu of activities

 issue(s):

 Definition of Terms

 issue(s):

 Response Encouraged for Each Question Asked

 issue(s):

 Specific mention of Title IX/Gender Equity as the reason for survey

 issue(s): 

Facts Blitz (Acosta/Carpenter, 2000)

 Avg. # of women’s sports offered per school = 8.14 (1978=2)

 1999-2000 - 205 new women’s teams added (more than 1/2 were in Div III - no scholarship opportunties)

 Soccer exhibits the greates growth of any sport in the last 23 yrs. It is now offered for women on 84% of the campuses (1977=2.8% of campuses)

 Lacrosse and golf have grown quite a bit, while gymnastics has declined somewhat (similar to what is going on with men’s programs) 

 Other emerging sports: ice hockey, rowing, handball, water polo, archery, badminton, bowling, squash

 80% of new coaching jobs in women’s athletics since 1998 have been filled by males (1972 = 90% women)

State Legislative Responses:

 Gender Equity Bills

Psychological & Philosophical “War”

 “Backlash”

 “Blaming the Victim”